Originally from Handbook on International Commercial Arbitration - Second Edition

Preview Page

Most tribunals will be motivated to ensure that the oral stages of the reference and, in particular, the evidentiary hearings are as limited as possible. Typically much more than two weeks is unusual and a week often as long as a tribunal would like to sit. This is not laziness rather a combination of diary management (especially for a 3-man tribunal finding longer periods when all members of the tribunal are available as well as counsel, can probe problematic) and a drive for efficiency and economy in the evidential hearing stage. This promotes thoughts of bi- (or tri-) furcation of a reference.

A. Economical Approach to Witness Evidence

In order to achieve a one-week (or two-week) evidential hearing, there has to be economy in dealing with each witness. This is usually achieved by each witness making a statement—and occasionally, in addition, a statement in reply—and examination-in-chief or direct examination being limited to confirming name and address, position and status and confirmation that the statement is true. In some instances, somewhere between a few and thirty minutes will also be spent in examination-in-chief either bringing out key issues or examining a witness on the evidence of the opposing party.1 Similarly, cross-examination is usually relatively brief—no more than a couple of hours: certainly not a couple of days save in very unusual cases. This is either expressly or impliedly on the basis that, contrary to some rules in national courts, if the positive case is not put to the opposing witnesses in cross-examination the evidence of that witness is treated as admitted. The IBA Rules provide in Article 4(8) that not requesting that a witness appear the correctness of a statement is not deemed to be agreed. This is reflective of the practice that it is not necessary to call a witness simply to put the opposing case to that witness. By logical extension if a witnesss is called it is not necessary to cross-examine on every point-no deemed admission is to be inferred from not doing so. It is, however, worth making that point express so that there is no confusion.